[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Rajesh K. Reddy reviews Jessica Eisen’s article Animals in the Constitutional State, which appears in the current issue of I•CON. Eisen’s full article is available for free here.]
—Rajesh K. Reddy, Interim Director, Animal Law LL.M. Program, Lewis & Clark Law School
It is no longer a given that animals should be invisible to constitutional law. Indeed, their interests are currently contemplated in the constitutional frameworks of at least eight countries. The existence of animal legal protections at the constitutional level may strike some scholars as curious, even counterintuitive given the historical understanding of constitutions as guarantors of human rights and human interests, including the interest in chattel property, a legal category into which animals still fall. But society’s growing appreciation of animal sentience, part and parcel of the recent “animal turn,” has produced a more nuanced view regarding animals’ intrinsic moral status and thus helped to reshape this paradigm. In charting the emergence and development of these constitutional considerations, Jessica Eisen’s “Animals in the Constitutional State” contributes to the growing discourse around the ability of traditional theories of constitutionalism to contemplate the interests of animals before proposing an alternative framework grounded in the ideal of protecting the state’s most vulnerable members.
Before advancing this vulnerability-based paradigm, Eisen first surveys existing constitutional animal protections in Switzerland, India, Brazil, Slovenia, Germany, Luxembourg, Austria, and Egypt. Eisen not only deconstructs these provisions themselves but also tracks the histories of their enactment and analyzes judicial determinations that have limited, refined, and in some instances expanded their scope. The purpose of this assessment is to identify and isolate the ethical and cultural values that led to the creation of these novel provisions. To this end, Eisen proposes five categories: human experientialism, or the human interests in advancing animal protections, such as ensuring their existence for future generations; animal experientialism, anchored in the recognition of animal sentience and the attendant desire to prevent suffering; deontology; human virtue; and minority oppression, which seeks to curtail the economic utilization of animals by minority groups. While Eisen treats these as distinct categories, she emphasizes how more than one value often serves as the inspiration for animals protections. For instance, as an example of Islamic-inspired deontology, Eisen points to Article 45 of Egypt’s constitution, which reads that the state shall provide for “the kind treatment of animals.” In her discussion of the article’s enactment, Eisen is careful to observe that the provision also enjoyed the support of advocates concerned with the link between human and animal violence, the argument being that by curtailing violence against animals, violence against humans would also witness a decline. As such, Egypt’s provision also proves to be buttressed by human experientialist concerns. Time and again, what Eisen reveals to readers unfamiliar with the nascent field of animal law are the overlapping, and oftentimes competing, interests that drive animal protection laws.
There is no better evidence of this than Eisen’s discussion of India’s Article 51A(g), which imposes a fundamental duty upon all citizens and states to exhibit “compassion for living creatures.” Eisen principally contextualizes this provision in terms of animal experience, relating how India’s Supreme Court referenced it in upholding the country’s first complete ban on cow slaughter. Eisen reproduces the Court’s language emphasizing the need to demonstrate compassion for animals that are now in their old age and have served human ends. What this monumental decision meant was that states could prevent the slaughter of all cows, not just “useful” ones, meaning those still capable of being milked or used for labor. While the Court’s citing of Article 51A(g) ostensibly speaks to animal experientialist concerns, readers familiar with the series of beef ban cases might appropriately assign the provision to the category of human experientialism given the Court’s determination that technology had effectively extended the economic life of the cow due to the value of its urine and dung, which the Court referred to as a “Kohinoor diamond.” In this light, the Court’s call for compassion for cows is inextricably bound to their continued, if not further entrenched, commodity status. Ultimately, what these competing narratives attest to is the complexity underlying the field of animal law, which Eisen acknowledges and embraces.
This distillation of core, overlapping, and sometimes competing ethical values that undergird constitutional animal protections sets the stage for Eisen’s interrogation of democracy and dignity as the traditional theoretical foundations of constitutional protections. In discussing constitutionalism founded upon the democratic ideal of citizen-state participation, Eisen draws heavily upon Joel Colon-Rios’s practical understanding of the citizen as a figure who “proposes, deliberates and decides,” a definition that necessarily excludes animals. However, Eisen observes that animals, although unable to be citizens under Colon-Rios’s approach, may nevertheless be subjects of the state and thus objects of constitutional protections. In Germany for example, the state, which is comprised of human citizens, is obliged to protect animals as both the subject and object of constitutional provisions. Developing this line of thought, Eisen employs Robert Garner’s theory likening political representation to a kind of enfranchisement, a symbolic ushering of animals into the democratic arena. Eisen, however, problematizes this framework, remarking upon the anthropocentric foundation of the resulting representation, specifically the inherent subjectivity (and thus inherent difficulties) in appreciating what animals, as quasi-citizens, desire.
Pivoting to the dignity model, Eisen interrogates Walter Murphy’s framing of human dignity as the foundation for constitutionalism. This framework thus emphasizes the exceptionalism of human characteristics, such as the capacity to reason and ability to enter into moral commitments. Eisen’s overarching concern with this model is that the constitutional provisions in place to respect human dignity necessarily speak to the problems humans face. As such, to equate human dignity to animal dignity would be to ignore the specific vulnerabilities animals face as chattel property. Moreover, Eisen asserts, even if dignity entails one’s being afforded rights, animals currently lack the standing to enforce those rights. In this regard, Eisen argues, even if legal representatives could be called upon to file suit on behalf of animals, normative judgements would need to be made in asserting animals’ interests.
Reiterating her fundamental concern with these prevailing constitutional theories, Eisen stresses how animals, whose lives are shaped by human laws, have no voice in the creation of these laws. Animals, Eisen reminds the reader, “are subjects, but not citizens; beneficiaries but not enforcers, of law.” Here, Eisen builds upon Vicki Jackson’s contention that the constitutional state owes a fundamental duty of care to its most vulnerable members, particularly those unable to participate in traditional forms of self-assertion. Indeed, animals’ status as sentient beings and their inability to inform the laws that control their lives cast them as especially vulnerable—a designation that has elicited the sympathy of judges and called attention to the failures of justice systems to combat their exploitation. The question Eisen positions herself to address, then, is how a model of constitutionalism fundamentally concerned with protecting its most vulnerable might better secure and expand upon protections for animals. The value of this vulnerability model, as Eisen sees it, lies in its increased scrutiny into how legislation and judicial interpretations that, while striving to balance human and animal interests, contribute to the suffering of animals as commodities.
While this answer appears simple enough, Eisen emphasizes that a constitutionalism concerned with vulnerability is only the foundation, a starting point. The issue that haunts the paradigm, of course, is to what extent legislators and jurists can really determine the interests of nonhuman animal species. In this regard, Eisen forcefully observes that animals are not “black boxes” and that numerous objective determinations can confidently be made while leaving ample room to respect an animal’s autonomy and agency. As Eisen goes to considerable lengths to make clear, an embrace of the vulnerability paradigm is no panacea for all of the ills that animals experience. Rather, integral to its viability are numerous other developments, including: agency independence, such as dedicated animal attorneys to prosecute offenses; the expansion of constitutional standing to include animals; more robust political and social debate concerning how systems exploit animals as a radically vulnerable population; and an increased scrutiny of majoritarian practices in light of animals’ voicelessness.
Undoubtedly, a theory of constitutionalism predicated upon protecting vulnerable populations would prove a welcome development for animal rights advocates and lawyers. While practical examples would help elucidate the feasibility of such a shift, the ability to point to vulnerability as a guiding principle represents a touchstone to ensure progress in both the legislative and judicial spheres. Indeed, such a shift would entail an increased attention paid to the inner lives and moral worth of others, both humans and animals, who exist at the margins of a majoritarian center but are increasingly being recognized and written into the constitutional state.
Suggested citation: Rajesh K. Reddy, Article Review: Rajesh K. Reddy on Jessica Eisen’s Animals in the Constitutional State, Int’l J. Const. L. Blog, Feb. 20, 2018, at: http://www.iconnectblog.com/2018/02/article-review-rajesh-k-reddy-on-jessica-eisens-animals-in-the-constitutional-state/